Citation Nr: 0214119
Decision Date: 10/10/02 Archive Date: 10/17/02
DOCKET NO. 98-07 849 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for dizziness, to
include as secondary to an undiagnosed illness.
2. Entitlement to service connection for the loss of memory
and concentration, to include as secondary to an undiagnosed
illness.
3. Entitlement to service connection for paresthesias of the
extremities, to include as secondary to an undiagnosed
illness.
4. Entitlement to an effective date earlier than July 16,
1996, for the grant of service connection for tinnitus.
REPRESENTATION
Appellant represented by: Nebraska Department of
Veterans' Affairs
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Barlow, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1988 to March
1992, including a tour in the Southwest Asia theater of
operations for the Persian Gulf War from October 1, 1990,
through February 28, 1991.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a December 1997 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Lincoln, Nebraska, which, among other things, denied the
claims for entitlement to service connection for dizziness,
loss of memory and concentration, and paresthesias of the
extremities and entitlement to an evaluation higher than 30
percent for service-connected post-traumatic stress disorder.
This appeal also stems from a November 1998 rating decision
of the same RO which granted service connection for tinnitus
and assigned an effective date of July 16, 1996, for a 10
percent disability evaluation.
The issues on appeal were originally before the Board in
April 2000, but were remanded for additional development. At
that time, the Board granted an increased evaluation for
post-traumatic stress disorder which was effectuated by the
RO in a June 2001 rating decision. Although the veteran
appealed the effective date assigned for the grant of an
increased rating for post-traumatic stress disorder and a
statement of the case was issued by the RO in February 2002,
the veteran has not perfected that appeal and, as such, the
issue of an earlier effective date for the grant of an
increased disability evaluation for post-traumatic stress
disorder is not currently before the Board on appeal. The
issues set forth on the title page of this decision were
further developed by the RO and have been properly returned
for appellate consideration.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran has periodic complaints of dizziness which
have not been shown on medical examination.
3. The veteran has complaints of loss of memory and
concentration which have not been shown on medical
examination.
4. The veteran has complaints of periodic tingling in both
his upper and lower extremities which have not been shown on
medical examination.
5. The veteran filed his original claim for entitlement to
service connection for tinnitus on October 12, 1993.
CONCLUSIONS OF LAW
1. Dizziness was not incurred in, aggravated by, or caused
by the veteran's period of active service, including service
in the Southwest Asia theater of operations during the
Persian Gulf War. 38 U.S.C.A. § 1110, 1117, 1131 (West 1991
& Supp. 2002); 38 C.F.R. §§ 3.303, 3.317 (2002).
2. Loss of memory and concentration was not incurred in,
aggravated by, or caused by the veteran's period of active
service, including service in the Southwest Asia theater of
operations during the Persian Gulf War. 38 U.S.C.A. § 1110,
1117, 1131 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303,
3.317 (2002).
3. Paresthesias of the extremities was not incurred in,
aggravated by, or caused by the veteran's period of active
service, including service in the Southwest Asia theater of
operations during the Persian Gulf War. 38 U.S.C.A. § 1110,
1117, 1131 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303,
3.317 (2002).
4. The criteria for an effective date of October 12, 1993,
for the grant of service connection for tinnitus have been
met. 38 U.S.C.A. § 5110 (West 1991 & Supp. 2002); 38 C.F.R.
§ 3.400 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset of this decision, the Board notes that it has
given consideration to the provisions of the Veterans Claims
Assistance Act of 2000 (the VCAA), Pub. L. No. 106-475, 114
Stat. 2096 (2000) [codified as amended at 38 U.S.C.A. § 5100
to 5107 (West Supp. 2001)]. The VCAA includes an enhanced
duty on the part of VA to notify a claimant of the
information and evidence necessary to substantiate a claim
for VA benefits. It also redefines the obligations of VA
with respect to its duty to assist a claimant in the
development of a claim. Regulations implementing the VCAA
have been enacted. See 66 Fed. Reg. 45,620 (August 29, 2001)
[codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)]. Also see Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal and for the reasons expressed immediately below finds
that the development of the claims on appeal has proceeded in
accordance with the provisions of the law and regulations.
VA has a duty under the VCAA to notify the veteran and his or
her representative of any information and evidence needed to
substantiate and complete a claim as well as to inform the
veteran as to whose responsibility it is to obtain the needed
information. The veteran was informed of the requirements of
the VCAA specifically and in detail in a letter dated
September 16, 2002. The veteran had previously been notified
of the evidence needed to substantiate his claims in letters
dated in June 1996, July 1996, and January 1997, as well as
in the statement of the case and supplemental statements of
the case. The Board finds that the information provided to
the veteran specifically satisfied the requirements of
38 U.S.C.A. Section 5103 in that the veteran was clearly
notified of the evidence necessary to substantiate his claim
and the expectations regarding evidence to be provided by
both the veteran and VA. Under these circumstances, the
Board finds that the notification requirement of the VCAA has
been satisfied.
The VCAA also provides that VA shall make reasonable efforts
to assist a claimant in obtaining evidence necessary to
substantiate his or her claim unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. After reviewing the record, the Board finds that VA
has complied with the VCAA's duty to assist by aiding the
veteran in obtaining medical evidence and affording him a
number of physical examinations. It appears that all known
and available medical records relevant to the issues on
appeal have been obtained and are associated with the
veteran's claims file, and the veteran does not appear to
contend otherwise. The veteran advised the Board in
September 2002, following receipt of a letter from the Board
outlining the evidence required to substantiate his claims,
that he had no additional evidence to submit. Although the
veteran stated that he was not sure what evidence was needed,
the Board notes that the veteran was specifically advised in
its September 2002 letter of the medical evidence needed to
be submitted and/or identified by the veteran.
The Board also finds that the veteran and his representative
have been accorded ample opportunity to present evidence and
argument in support of the veteran's claims. The veteran
testified before an RO hearing officer on two occasions
regarding issues involving earlier effective dates and
elected not to give testimonial evidence regarding the
service connection issues on appeal. Additionally, he has
participated in the development of his claims on appeal.
Thus, the Board finds that VA has done everything reasonably
possible to notify and to assist the veteran and that no
further action is necessary to meet the requirements of the
VCAA and the applicable regulatory changes published to
implement that statute.
I.
Service Connection Claims
Service connection for VA compensation purposes will be
granted for a disability resulting from disease or personal
injury incurred in the line of duty or for aggravation of a
preexisting injury in the active military, naval or air
service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
When a veteran seeks service connection for a disability,
due consideration shall be given to the supporting evidence
in light of the places, types, and circumstances of service,
as evidenced by service records, the official history of
each organization in which the veteran served, the veteran's
military records, and all pertinent medical and lay
evidence. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a).
The mere fact of an in-service injury is not enough; there
must be evidence of a chronic disability resulting from that
injury. If there is no evidence of a chronic condition
during service, or an applicable presumptive period, then a
showing of continuity of symptomatology after service is
required to support the claim. See 38 C.F.R. § 3.303(b).
Evidence of a chronic condition must be medical, unless it
relates to a condition to which lay observation is
competent. See Savage v. Gober, 10 Vet. App. 488, 495-498
(1997). If service connection is to be established by
continuity of symptomatology, there must be medical evidence
that relates a current condition to that symptomatology.
Id.
Except as provided in paragraph (c) of 38 C.F.R.
Section 3.317, VA shall pay compensation in accordance with
chapter 11 of title 38, United States Code, to a Persian
Gulf veteran who exhibits objective indications of chronic
disability resulting from an illness or combination of
illnesses manifested by one or more signs or symptoms such
as those listed in paragraph (b) of 38 C.F.R. Section 3.317,
provided that such disability: (i) became manifest either
during active military, naval, or air service in the
Southwest Asia theater of operations during the Persian Gulf
War, or to a degree of ten percent or more not later than
December 31, 2001; and, (ii) by history, physical
examination, and laboratory tests cannot be attributed to
any known clinical diagnosis. See 38 C.F.R. § 3.317(a)(1).
For the purposes of 38 C.F.R. Section 3.317(a)(1), signs or
symptoms which may be manifestations of undiagnosed illness
include, but are not limited to: (1) fatigue, (2) signs or
symptoms involving skin, (3) headache, (4) muscle pain, (5)
joint pain, (6) neurologic signs or symptoms, (7)
neuropsychological signs or symptoms, (8) signs or symptoms
involving the respiratory system (upper or lower), (9) sleep
disturbances, (10) gastrointestinal signs or symptoms, (11)
cardiovascular signs or symptoms, (12) abnormal weight loss,
(13) menstrual disorders.
On December 27, 2001, the President signed into law the
Veterans Education and Benefits Expansion Act of 2001, Pub.
L. 107-103, 115 Stat. 976 (2001) with an effective date of
March 1, 2002. This Act enlarged the circumstances under
which a Persian Gulf War veteran could qualify for veterans'
benefits due to his service in the Southwest Asia theater of
operations during the Persian Gulf War. Specifically, the
Veterans Education and Benefits Expansion Act of 2001 has
made it possible for service connection to be granted for a
medically unexplained chronic multisymptom illness (such as
chronic fatigue syndrome, fibromyalgia, and irritable bowel
syndrome) that is defined by a cluster of signs and symptoms
which may have been given a diagnosis as opposed to limiting
the grant of service connection to those illnesses which
remain undiagnosed. See 38 U.S.C.A. § 1117(a)(1) as amended
by § 202 of HR 1291, Pub. L. 107-103, 115 Stat. 976 (2001).
The evidence of record shows that the veteran filed an
application for compensation benefits in October 1993,
asserting that he experienced ringing in his ears, headaches,
memory loss, joint pain, and trauma as a result of his
service. His mother and sister submitted statements in 1995,
asserting that the veteran had difficulty remembering things
and experienced pain throughout his body. Treatment records
dated from May 1993 through 1996 show periodic complaints of
joint pain, stomach pain, ringing in the ears, and headaches.
The veteran underwent multiple VA examinations in May 1996
and complained of dizziness secondary to headaches. There
were no objective findings of dizziness, loss of memory or
concentration, or of paresthesias in the extremities. Upon
psychiatric evaluation, the veteran was noted to have intact
associations, no difficulty staying on topic, a good memory,
and adequate concentration.
The veteran underwent another series of evaluations in
September and October 1997, and complained of vague multiple
joint pain, blurred vision, headaches and dizziness. Upon
neurologic examination, the veteran related having a tingling
sensation in both hands and feet without limb predominance or
strength involvement; he also complained of momentary
dizziness with rising after sitting and/or laying down for
extended periods of time, and difficulty remembering names
and facts. The Board notes that the veteran denied dizziness
at his ear, nose, and throat examination.
At the neurologic examination, there was no objective
evidence found of neuropathy and all nerve conduction studies
were normal. The examiner noted that the veteran did not
have an impaired memory as he was able to remember rather
important events in his life as well as perform work as a
legal aide. There were no subjective findings of dizziness.
At the eye examination, the examiner diagnosed tension
headaches and chronic allergic conjunctivitis. And, at the
general examination, the examiner rendered a diagnostic
impression of vague, non-specific musculoskeletal-type
complaints with no objective findings, opining that the
veteran's symptoms were more likely than not unrelated to
service.
The veteran underwent VA psychiatric and neurologic
examination in June 2000. It was noted at that time that his
thought process was goal-oriented and he had no flight of
ideas, loosening of associations, tangentiality, or
circumstantiality. The veteran's memory testing for remote
and recent events was intact and his attention, recall and
concentration were noted to be good. There were no
neurologic deficits found and the veteran had excellent
reflexes, sensation, and nerve conduction. There were no
labyrinthine disorders found on physical examination nor any
memory problems. Upon general examination, it was noted that
the veteran had subjective vertigo which was not present on
examination, and subjective recurrent paresthesia and pain in
the hands and feet.
Treatment records dated from 1996 through September 2001
reflect complaints of joint pain and epigastric problems.
There is no mention of dizziness, loss or memory and/or
concentration, or tingling in the hands and feet. The
veteran has been incarcerated throughout this appeal and, as
such, does not participate in any treatment at a VA medical
center.
Given the evidence as outlined above, the Board finds that
there are only periodic subjective complaints of dizziness
associated with standing up after sitting or laying down for
extended periods of time. There are no objective findings of
dizziness and the veteran is not currently found to have a
disability due to dizziness. Additionally, there is no
evidence linking the veteran's periodic complaints of
dizziness to his military service. As such, the Board finds
that, absent a showing of disability, dizziness was not
incurred in, aggravated by, or caused by the veteran's period
of active service, including his service during the Persian
Gulf War. Consequently, the veteran's appeal in this regard
is denied.
Additionally, there is no objective medical evidence of a
loss of memory and/or concentration. Although the veteran,
his mother, and his sister report a difficulty remembering
things after returning from service, the veteran has
displayed normal memory and concentration upon examination
and reports being employed as a legal aide. As such, the
Board finds that there is no evidence of a current disability
due to memory loss and/or loss of concentration. As a
consequence, entitlement to service connection for loss of
memory and/or concentration is denied.
Furthermore, the Board finds no objective evidence of
paresthesias of the extremities due to military service. The
veteran has complaints of tingling in his hands and feet upon
examination, but there is no treatment for a neurologic
deficit nor have there been any objective findings of
neurologic deficit. Nerve conduction studies are normal and
the veteran has been described as having excellent reflexes,
sensation, and nerve conduction. As such, the Board finds
that, absent evidence of a current disability, paresthesias
of the extremities was not incurred in, aggravated by, or
caused by the veteran's period of active service, including
his service during the Persian Gulf War. And, consequently,
the veteran's appeal in this regard is denied.
II.
Earlier Effective Date
Except as otherwise provided, the effective date of an
evaluation and award of pension, compensation, or dependency
and indemnity compensation based on an original claim, a
claim reopened after final disallowance, or a claim for
increase will be the date of receipt of the claim or the
date entitlement arose, whichever is the later. See
38 C.F.R. § 3.400. If application for benefits is received
within one year of discharge or release from service, the
effective date of an award of disability compensation shall
be the day following the date of discharge or release from
service. See 38 U.S.C.A. § 5110(b)(1).
The veteran filed his application for compensation benefits
on October 12, 1993, over one year after his discharge from
service in March 1992. Based on that application, a claim of
entitlement to service connection for tinnitus was denied in
a July 1995 rating decision. The veteran submitted a notice
of disagreement and a statement of the case was issued in
February 1996. The veteran did not perfect his appeal by
filing a substantive appeal; however, he was notified on July
30, 1996, that all of his claims for compensation based on
service in the Persian Gulf War were being re-evaluated. As
a consequence of that re-evaluation, the veteran was granted
service connection for tinnitus and an effective date of July
16, 1996, was assigned as the date the law mandated a re-
evaluation of Persian Gulf War cases which required
clarification in certain specified areas. The veteran
appealed the assignment of the 1996 effective date.
The Board notes that on July 16, 1996, a VA Fast Letter was
issued requiring that all Persian Gulf War claims which were
disallowed had to be re-evaluated to determine if proper
weight was given to the evidence and proper notice was sent
to the veteran regarding the development of the claims. This
Fast Letter specifically stated that the effective date for
any case in which service connection was granted as a result
of the re-evaluation would be the date of receipt of the
veteran's original claim. Apparently, the RO misinterpreted
the July 1996 Fast Letter in assigning the date of the letter
as the effective date for the grant of compensation benefits.
Given the evidence as outlined above, the Board finds that
the appropriate effective date for the grant of service
connection for tinnitus is the date of receipt of claim,
October 12, 1993. This is the earliest available effective
date as the veteran's application was filed over one year
after his discharge from service. Accordingly, the veteran's
appeal in this regard is granted.
ORDER
Service connection for dizziness, including as secondary to
an undiagnosed illness, is denied.
Service connection for loss of memory and/or concentration,
including as secondary to an undiagnosed illness, is denied.
Service connection for paresthesias of the extremities,
including as secondary to an undiagnosed illness, is denied.
An effective date of October 12, 1993, for the grant of
service connection for tinnitus is granted.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.